ABSTRACT: More than 25 years ago, Christopher Norall and I wrote an article
challenging the Commission’s approach to the application of Articles
81(1) and (3) EC, calling for the priests of competition law in
Brussels to trust the laity more, to share enforcement duties with
others, and to be less formalistic in interpreting the rules. It was
one of a string of articles which suggested that the Commission could
not maintain its monopoly over the grant of exemptions. Its theory that
the prohibition of Article 81(1) EC caught everything which might have
a remotely discernible effect on competition was understandable for the
early days of an untested institution, dubious about the scope of its
competence and the reception its theories would receive from courts and
businesses. The theory needed to adapt to the realities of an enlarged
Europe. After years of hesitation, the Commission wisely chose to share
enforcement with national courts and national competition authorities.
This was a massive change in course, widely and justly commended.

The
biggest success of the reform has been the unexpectedly large surge in
cooperation among national competition agencies, and between the
competition agencies and the Commission. EC competition law has become
a routine part of the business, economic, and governmental environment
in Europe. There have been some unconvincing and some bad decisions;
inconsistent decisions; eccentric national legislation (my favorite
being Greek Law No 3373/2005 which kept in force the administrative
prior authorization system and brought back compulsory notification for
vertical agreements); but many good decisions. Instead of a tiny number
of flagship European Commission decisions which were really major new
pieces of rule-making, decisions applying the competition rules by
competition authorities across the EU have now become commonplace. This
is, I suggest, the most important point.